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Criminalization of Competition Law Enforcement

Criminalization of Competition Law Enforcement

Economic and Legal Implications for the EU Member States

Edited by Katalin J. Cseres, Maarten Pieter Schinkel and Floris O.W. Vogelaar

This timely book brings together contributions from prominent scholars and practitioners to the ongoing debate on the criminalization of competition law enforcement. Recognizing that existing remedies and sanctions may be insufficient to deter breaches of competition law, several EU Member States have followed the US example and introduced pecuniary penalties for executives, professional disqualification orders, and even jail sentences. Addressing issues such as unsolved legal puzzles, standard of proof, leniency programs and internal cartel stability, this book is a marker for future policy debate.

Chapter 9: Criminalization and Leniency: Will the Combination Favourably Affect Cartel Stability?

Patrick Massey

Subjects: law - academic, competition and antitrust law


Patrick Massey1 1 INTRODUCTION The past decade has witnessed a growing recognition throughout the European Union of the serious harm inflicted on consumers and on the economy by what have come to be described as ‘hard-core’ cartels, that is, price-fixing and market-sharing cartels.2 The exposure by the US authorities during the 1990s, of a series of major international cartels operating on a worldwide basis, undoubtedly highlighted the serious harm caused by such cartels. The reform of EU competition policy enshrined in Regulation/1/2003 was prompted, in large part, by a recognition that efforts to detect and discourage such cartels needed to be stepped up considerably. Speaking prior to the Regulation’s introduction, for example, the then Competition Commissioner, Mario Monti, conceded that: ‘We are not in a position to be active on our own initiative – to go on the ground and make investigations and dawn raids and identify the really threatening hard-core cartels’.3 Increased recognition of the damage caused by cartels has prompted a number of countries, including Ireland and the UK, to introduce criminal sanctions in the form of jail sentences for those involved in such activities. There have also been some calls for the introduction of criminal penalties for cartels in other Member States and possibly at EU level.4 Similarly many competition agencies including the EU Commission and those in many Member States have introduced leniency programmes following the apparent success of such a programme in the US. The introduction of criminal sanctions and leniency programmes raises an...

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